This question comes from a NSW volunteer who writes:
At a recent Advanced Resuscitation Techniques (ART) course in NSW we were advised that a person without a current ART certification would receive no protections under the Good Samaritan Act if they were to treat a casualty using oxygen equipment and that casualty was to subsequently sue them. The explanation was that first aiders weren’t to go “beyond their qualifications”.
There is currently a (probably unofficial) understanding in many RFS brigades that in the absence of a qualified ART operator, anybody who was confident to use the oxygen equipment could do so, with the consensus being that to do something was better than doing nothing.
I understand one doesn’t require first aid qualifications to render first aid, but does one forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid. If so, at what point is one deemed to be “beyond his or her qualifications”?
Statements to the effect that going beyond one’s qualifications takes a person outside the good Samaritan protections shows a fundamental misunderstanding of those protections and why they are there. In short a person does not ‘forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid’.
Nearly all Australian states and territories have in place good Samaritan legislation to ensure that people who step forward to provide emergency medical assistance are not held legally liable for their actions provided they act in good faith (Civil Laws (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) s 57; Personal Injuries (Liabilities and Damages) Act (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002(Tas) s 35B; Wrongs Act 1958 (Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD).
These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said (emphasis added):
The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.
Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.
Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.
The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).
Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability, rather than any real risk. In doing so they have changed the question from ‘did the intervener act reasonably in all the circumstances?’ to ‘did the intervener act in good faith?’
Given my correspondent is from NSW I’ll use the NSW Act. The Civil Liability Act 2002 (NSW) s 57(1) says:
A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.
A ‘“good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56).
To be a good Samaritan the person has be
1) acting in good faith;
2) without expectation of payment or other reward
3) to assist a person who is
4) apparently injured or at risk of being injured.
Nothing in that list says anything about ‘acting within one’s qualifications’ and that is for obvious reasons. The Act is intended to encourage people, including those without any qualifications, to help when help is needed. The Ipp review may have said ‘The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations…’ but the section as drafted is not limited to health professionals, it applies to anyone.
The key is ‘good faith’. One could argue that undertaking action that you know you are not trained is not ‘good faith’ but I don’t believe that would be the outcome. The key case on good faith is Mid Density Developments Pty Limited v Rockdale Municipal Council  FCA 408. This case involved a question of whether the council acted in good faith when giving advice in relation to a properties flood risk. In the course of their judgment Gummow, Hill and Drummond JJ said (at ):
His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.
With resect to the section in question they went on to say (at ) ‘ The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority’.
Applying that reasoning to the good Samaritan provisions requires that the intervener is acting ‘not maliciously or to achieve an ulterior purpose’ so they’re acting to assist the injured person, not to steal their wallet or do them harm and it’s a genuine attempt not to harm the person, ie to do the right thing. So a person who is confident in the use of oxygen and who genuinely believes that oxygen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that oxygen; or use the person’s epi-pen or help them with their ventolin, or do CPR or use an automatic defibrillator. The person who says ‘I always wanted to do a tracheostomy using a Swiss army knife and a pen (as in M*A*S*H Season 5 Episode 8, ‘Mulcahy’s War’) and now I can because I can’t be sued’ is not acting in good faith.
It should be noted that whether or not one has a ticket or qualification to do something in no way determines whether or not one is negligent. A person who is unlicensed may be a perfectly safe and competent driver; a person with a licence may be a menace. Whether or not one holds a licence or certificate does not determine whether or not they are negligent in any particular case. There is no law that says one needs any particular authority to use oxygen. In an negligence action the question would be ‘was the use of oxygen reasonable?’ and with the good Samaritan provision, was it done ‘in good faith?’
The good Samaritan provisions are intended to encourage people to act on the basis of some help is better than none and to reassure people that they would not be liable. The Ipp review said they were unnecessary and would ‘tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance’ because they do remove considerations of whether the response is ‘reasonable’. It is intended, in fact, to encourage action in the very circumstances described that is where a person ‘confident to use the oxygen [or other] equipment could do so, with the consensus being that to do something was better than doing nothing’.
The assertion that a person would ‘forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid’ is quite simply, wrong.
POST SCRIPT: I have previously argued that I don’t think the good Samaritan provisions are intended to apply with volunteers with organisations such as the State Emergency Service, St John Ambulance and by extension, the Rural Fire Service. For those volunteers the ‘volunteer protection’ provisions are more appropriate. I have not addressed that issue in the discussion, above, focussing instead on the issues raised by my correspondent. For the discussion on the applicability of the good Samaritan provisions to emergency service volunteers see:
- NSW SES Good Samaritans (August 25, 2014);
- Non-operational staff travelling in marked emergency service vehicles (NSW) (October 29, 2014); and
- Who to treat? A question for St John first aiders (30 June 2013).